As part of our occasional “divorce myths” series we thought we’d take a look at the effect that the length of time for which a couple has been married can affect how their financial matters are split on divorce.
When it comes to separating out peoples’ money and property after their relationship has broken down, a number of different things have to be taken into account: most important of these things is usually what each family member needs, and first consideration is always for the wellbeing of any children of the family. Other factors include what resources each person has available, including their ability to earn, and their ages, state of health, etc: you can see a full list and explanation on our ‘financial orders: principles’ factsheet here. The length of the marriage is set down in the law as a factor that the law considers important. The aim of the law is to make a fair division of whatever financial resources are available.
Lawyers look at two main sources of law to give you advice on what kind of division of money and property would be fair in your case. There is statute law, which is made by parliament (for divorcing couples, this is the Matrimonial Causes Act 1973), and case law, which is made by senior judges when they are interpreting parliament’s intention in making the law and applying this to the individual cases – people’s lives – that come before them. Case law shows consistently that the longer the marriage, the more chance there is that the economically weaker party will, where circumstances allow, be given a settlement that enables them to be financially secure for the rest of their lives. The division of assets in a long marriage is more likely to be equal, or close to it, whether or not the wealth has all come from one side.
So what makes a long marriage? Case law is not certain. 20 years ago a long marriage might have been considered to start at 20 years’ duration; now it may be a relationship as short as 10-15 years depending on circumstances. However, the most important thing to understand is that a “long marriage” can be just a couple of years, even down to a matter of months. This is because the courts consider pre-marital cohabitation, if it is “seamless” in its transition to marriage, to be sufficient evidence of the requisite commitment to be considered part of the marriage period. So in many circumstances and particularly for younger couples who are more likely to cohabit, the relevant question that your lawyer will wish to know the answer to is not “when did you get married?” but rather, “when did you move in together?”.
When civil partnerships were first introduced in law in 2004, there was much discussion about how the courts would treat civil partners’ financial division on dissolution. Inevitably, among the first couples to register civil partnerships were many couples to whom formalising a relationship in the eyes of the law had previously been impossible, but who had lived together for decades. Would the court amalgamate the periods of cohabitation and civil partnership to catapault them straight into “long marriage” territory? The answer we expected was “yes”, and it came definitively last week from the Court of Appeal when it considered the first financial appeal on a civil partnership dissolution in the case of Lawrence v Gallagher (see here for the judgment). There was no fuss about it, despite the fact that the couple involved had lived together for only a short time after their civil partnership was registered. Their many years of living together before registering their civil partnership meant that they were treated by the court just like any other couple who had been married for a long time.
The moral of the story is this: a short marriage/civil partnership is not a short marriage/civil partnership if you lived together before marriage/civil partnership for a long time; and living together before marriage/civil partnership can have legal consequences further down the line if you do decide to marry/register a civil partnership later.